Cautious Optimism Urged on Roberts NominationRushing to judgment on John
Roberts' nomination for Associate Justice of the Supreme Court of the United
States is very likely not in the best interest of the pro-life and
pro-family movement. In the end, enthusiastic support for his confirmation,
based on the perception that he would rule differently than Justice Sandra
Day O'Connor, could come back to haunt those who engage in it. After all,
his record indicates that his opinions might very well reflect hers,
especially when it comes to Roe v. Wade.

In 1989, Judge Roberts became a principal deputy to solicitor
general Kenneth Starr. In that capacity, he helped write a brief in the
case of Rust v. Sullivan, which was a challenge to the restrictions on Title
X funds for agencies engaged in family planning, prohibiting them from
recommending or referring clients for abortions. Acting on behalf of the
Bush administration, the lawyers involved, including then-deputy solicitor
general Roberts, wrote, "We continue to believe that Roe v. Wade was wrongly
decided and should be overruled." The Supreme Court's decision in that
case upheld the right of Congress to prohibit federally funded family
planning agencies like Planned Parenthood from promoting or performing
abortions. Pro-life Americans were heartened to learn of Judge Roberts'
role in that case.

Then, in 2003, during his confirmation hearings for the U.S.
Court of Appeals for the District of Columbia Circuit, he was pressed for
his views on Roe. At that time he said, "Roe v. Wade is the settled law of
the land. . . . There's nothing in my personal views that would prevent me
from fully and faithfully applying that precedent."

Media reports show that he clearly stated during those
confirmation hearings that the briefs he wrote or helped to write, while he
was working for the solicitor general, reflected the administration he
served, rather than his own judicial philosophy.

Many leaders in the social conservative community have rallied
to the support of Roberts' confirmation, even though Roberts' stated view is
that Roe is the settled "law of the land."

Some knowledgeable observers have made comments that should be
noted. Supreme Court historian David Garrow of Emory University said that,
while Judge Roberts is a conservative, he is not in the mold of Justices
Antonin Scalia and Clarence Thomas. "I do not think it moves the court"
that much, he said. (The Dallas Morning News, 7/20/05)

John Yoo, a professor of law at the University of California at Berkeley who
served in the Justice Department earlier in the Bush administration said,
"He's the type of person that business conservatives and judicial restraint
conservatives will like, but the social conservatives may not like." "He
represents the Washington establishment. These Washington establishment
people are not revolutionaries, and they're not out to shake up
constitutional law. They might make course corrections, but they're not
trying to sail the boat to a different port." (The New York Times, 7/20/05)

Judge Roberts was confirmed by a near-unanimous vote (three
NAYs: Schumer, Kennedy and Durbin) for the Court of Appeals just two years
ago. It seems highly unlikely that many votes, if any, will change this
time. He is well accepted by the Washington establishment. The
pro-abortion crowd, most Democrats, and other liberals will flap around for
a while in an effort to cause a stir and satisfy their donors. But, in the
end, John Roberts will very likely be seated on the U.S. Supreme Court in
the fall. Then, and only then, will we know which way he will go on issues
that matter to us.

Article X of the U.S. Constitution states: "The powers not delegated to the
United States by the Constitution, nor prohibited by it to the states, are
reserved to the states respectively, or to the people." Will he join with
Scalia and Thomas in respecting the original intent of the Framers, or will
he be a party to the consistent drive by the majority on the court to
undermine the will of the people by striking down the laws passed by their
duly-elected representatives in the legislatures of the 50 sovereign states?

Judge Roberts is an extremely attractive nominee with an impressive record.
He will very likely turn out to be a credit to President Bush and a staunch
adherent to Constitutional principles. He may provide to the court the
conviction that the right to life is the first right without which we have
no other. We don't know. We are not sure. Perhaps we would do well to
exercise caution while remaining optimistic. After all, Roberts could turn
out to be another O'Connor, or Souter, or Kennedy. If that happens, which
we sincerely hope it won't, it would be most uncomfortable to have to point
the finger of blame at ourselves.

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